Complainant

Respondent

Parties

David  O'Connor

Health Service Executive

Representatives

Pat Mullins of O'Flynn Exhams LLP

Loughlin Deegan of  Byrne Wallace Shields LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998

CA-00066884-001

22/10/2024

The Complainant is employed by the Respondent as an Advanced Paramedic with the National Ambulance Service. He submitted a complaint to the Workplace Relations Commission (“the WRC”) on 22 October 2024 alleging discrimination on the disability ground and a failure to provide reasonable accommodation. The complaint arises from the Respondent’s requirement that paramedics utilise an Electronic Patient Care Report device (“ePCR”). The Complainant asserts that he suffers from a shoulder injury which interferes with his ability to use the ePCR device and that the Respondent failed to provide reasonable accommodation.

The Respondent denies the claims and raised, as a preliminary matter, that the Complainant has failed to establish that he suffered from a disability within the meaning of the Employment Equality Act 1998 (as amended) (“the 1998 Act”) during the cognisable period. The cognisable period in this case is 23 April 2024 to 22 October 2024.

The Complainant is employed by the Respondent as an Advanced Paramedic within the National Ambulance Service. The Complainant submits that he suffers from a shoulder injury which he contends constitutes a disability within the meaning of section 2 of the 1998 Act. The Complainant submits that the Respondent introduced the mandatory use of an ePCR and that the design and operation of the device adversely affects him due to his shoulder condition.

The Complainant submits that the device requires sustained use in confined and moving environments and that supporting and operating the device causes discomfort and aggravates his shoulder injury. He submits that the layout and operation of the device requires him to stabilise his wrist while inputting data, which he states exacerbates his symptoms. The Complainant submits that alternative working methods suggested to him were impractical in the operational environment.

The Complainant submits that he raised concerns with management regarding the ergonomic impact of the device and sought the implementation of alternative equipment or working arrangements which he contends would reduce the physical strain associated with the device. The Complainant submits that he identified alternative equipment which he believed would alleviate his difficulties and submits that he was informed that such alternatives would be considered. He submits that appropriate measures were not implemented and that he was not provided with adequate information regarding the outcome of ergonomic or safety assessments.

The Complainant submits that the requirement to use the ePCR device places employees with similar physical impairments at a particular disadvantage and that the Respondent failed to take appropriate measures to accommodate his disability. The Complainant submits that this constitutes discrimination on the disability ground and a failure to provide reasonable accommodation contrary to the 1998 Act.

The Respondent denies that it discriminated against the Complainant or failed to provide reasonable accommodation. As a preliminary matter, the Respondent submitted that the Complainant had not established that he suffered from a disability within the meaning of the 1998 Act during the cognisable period. The Respondent stated that while the Complainant provided medical documentation relating to earlier and later periods, no medical evidence was produced establishing that he suffered from a disability during the relevant six-month period preceding the referral of the complaint. The Respondent submitted that the burden of proof rests with the Complainant to establish primary facts demonstrating discrimination, including establishing that he falls within one of the protected grounds under the 1998 Act.

Without prejudice to this preliminary position, the Respondent submitted that the ePCR device was introduced as part of a national and regulatory requirement to improve patient care, clinical governance and data quality. The Respondent stated that the introduction of electronic patient records forms part of wider Government and European policy aimed at modernising healthcare systems, improving patient safety, enhancing clinical audit processes and ensuring the availability of accurate patient data. The Respondent submitted that the device improves accuracy, reduces clinical risk, supports patient safety and continuity of care and reduces administrative burden on paramedics. It further submitted that the device is lightweight, widely used across the service and represents a necessary operational requirement.

The Respondent submitted that the Complainant was assigned to the Pathfinder programme during the cognisable period and that this role involves lower physical demands than standard emergency ambulance duties. The Respondent stated that the Complainant was not required to use the ePCR device while performing Pathfinder duties and that during the cognisable period he undertook very limited shifts requiring its use. The Respondent contended that the Complainant therefore did not suffer any disadvantage during the cognisable period.

The Respondent submitted that it had previously arranged ergonomic and safety assessments in response to concerns raised by the Complainant and implemented recommendations arising from those assessments. It submitted that those assessments did not conclude that the device was unsuitable for use by paramedics. The Respondent further submitted that paramedics working in emergency services must be capable of performing a full range of duties in order to maintain operational capacity, as provided for under section 37(3) of the 1998 Act.

The Respondent contended that the requirement to use the ePCR device pursues a legitimate operational and clinical objective and is objectively justified. It submitted that no failure to provide reasonable accommodation arose and that the Complainant failed to establish any prima facie case of discrimination under the 1998 Act.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

In circumstances where the Respondent has raised a preliminary issue, I will address that issue in the first instance.

Preliminary Issue – Whether the Complainant established a Disability within the meaning of the Employment Equality Act 1998 (as amended)

The Respondent raised, as a preliminary matter, that the Complainant has failed to establish that he suffered from a disability within the meaning of the 1998 Act during the cognisable period. The Respondent submits that, in the absence of evidence establishing that the Complainant falls within the disability ground, the complaint cannot succeed.

Having considered the parties’ submissions, I am satisfied that it is appropriate to address this preliminary issue at the outset, as it is fundamental to the complaint.

It is well established that, in order to succeed in a complaint under the 1998 Act, a complainant must first establish that they come within one of the protected discriminatory grounds before consideration can be given to whether the alleged treatment occurred and whether such treatment was discriminatory.

Section 6(1) of the 1998 Act provides that discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on one of the discriminatory grounds set out in section 6(2) of the 1998 Act. The disability ground is provided for at section 6(2)(g) of the 1998 Act.

The disability ground arises where a complainant establishes that they fall within the statutory definition of disability contained in section 2 of the 1998 Act. While the statutory definition of disability is broad and includes physical impairments and conditions which may have existed previously or may exist in the future, a complainant must establish, on credible evidence, that such a disability existed and was relevant to the alleged discriminatory treatment during the period under consideration.

Section 85A of the 1998 Act sets out the applicable burden of proof. This provision requires that a complainant must establish facts from which discrimination may be presumed before the burden shifts to the respondent. In Southern Health Board v Mitchell [2001] 12 ELR 201 the Labour Court held that a complainant must prove, on the balance of probabilities, the primary facts upon which they rely in seeking to raise a presumption of discrimination. The Labour Court further clarified in Arturs Valpeters v Melbury Developments Ltd [2010] ELR 64 that the facts relied upon must be of sufficient significance to raise such a presumption and that mere speculation or unsupported assertions cannot form the basis upon which discrimination may be inferred.

The Respondent also referred to the decision of the Labour Court in Irish Prison Service v Robert Cunningham EDA2434 wherein the Labour Court set out the sequential questions to be determined in complaints involving disability discrimination and reasonable accommodation, namely:

(a) whether the complainant has established that, at the relevant time, they had a disability within the meaning of the Acts;

(b) if so, whether that disability required reasonable accommodation; and

(c) if so, whether the employer failed to provide such accommodation.

I accept that this approach accurately reflects the statutory framework. Accordingly, it is necessary in the present case to first determine whether the Complainant has established that he had a disability within the meaning of the 1998 Act during the cognisable period.

The complaint was referred to the WRC on 22 October 2024. In accordance with section 77(5) of the 1998 Act, the cognisable period is 23 April 2024 to 22 October 2024.

The Complainant submits that he suffers from a shoulder injury which he contends constitutes a disability and interferes with his ability to use the ePCR device. The Respondent disputes that the Complainant has established the existence of a disability during the cognisable period.

I accept that a shoulder injury or musculoskeletal condition may, in appropriate circumstances, fall within the statutory definition of disability. However, the existence of such a condition must be supported by evidence demonstrating that it was operative and relevant during the cognisable period.

The Complainant furnished medical documentation relating to a historical period ending in 2018 and additional medical documentation dated after the cognisable period. The Complainant gave evidence that he attended his medical practitioner in 2025 due to experiencing shoulder pain at that time. In particular, he relied upon a report from Professor Dermot O’Farrell, Consultant Orthopaedic Surgeon, dated 11 June 2025. That report records that Professor O’Farrell had previously reviewed the Complainant approximately ten years earlier and refers to symptoms and a 20% loss of function in the left shoulder at present. However, the report relates to the Complainant’s condition in 2025 and does not provide a retrospective assessment of his condition during the cognisable period. Accordingly, while the report confirms the presence of symptoms at a later date, it does not establish that the Complainant suffered from a disability within the meaning of the 1998 Act during the cognisable period. No contemporaneous medical or expert evidence was presented which establishes that the Complainant suffered from a disability within the meaning of the 1998 Act during that period.

I have considered the Complainant’s evidence regarding the physical difficulties he states he experienced when using the device and the ergonomic concerns he raised. However, in the absence of supporting medical or objective evidence linking those difficulties to a disability within the meaning of the 1998 Act during the cognisable period, I am not satisfied that the Complainant has established that he falls within the disability ground.

Accordingly, I find that the Complainant has not established primary facts sufficient to raise a presumption of discrimination on the disability ground. As the Complainant has not crossed that evidential threshold, it is not necessary to consider the substantive complaints of discrimination or reasonable accommodation.

I have decided that the Complainant has failed to establish, on credible evidence, that he suffered from a disability within the meaning of the 1998 Act during the cognisable period and, consequently, has failed to establish facts from which discrimination on the disability ground may be presumed.

In circumstances where the Complainant has not established that he falls within a protected ground, the complaint cannot succeed and the obligation to consider reasonable accommodation does not arise.

Accordingly, I find that the complaint is not well founded.